NEUTRAL CITATION
C/SCA/3310/2023 ORDER DATED: 13/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3310 of 2023
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 3310 of 2023
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ASHVINSINH BHIKHAJI SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
MR MAHESH BHAVSAR for the Petitioner(s) No. 1
MR ADITYA DAVDA, AGP for the Respondent(s) No. 1
MS URMILA N DESAI(5609) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/09/2023
ORAL ORDER
1. Heard learned advocate Mr. Mahesh Bhavsar for the petitioner and learned advocate Ms. Urmila Desai for respondent No.2.
2. By way of this petition under Article 227 of the Constitution of India, the petitioner has prayed to quash and set aside the order dated 26.12.2022 passed by the learned 2 nd Addl. Senior Civil Judge and ACJM, Palanpur in Regular Execution Nos.10/2017, 18/2017, 61/2017, 807/2018, 27/2020.
3. It is submitted that Regular Execution Nos.10/2017, 18/2017, 61/2017, 807/2018, 27/2020 are filed for executing judgment and decree passed in HMP No.17 of 2012 by the Page 1 of 3 Downloaded on : Sat Sep 16 17:04:00 IST 2023 NEUTRAL CITATION C/SCA/3310/2023 ORDER DATED: 13/09/2023 undefined learned Court below. However, the same came to be upturned by the judgment dated 7.8.2023 passed by the learned Principal District Judge, Palanpur in RCA No.22 of 2016 and therefore, now the regular executions are not surviving.
4. On the other hand, learned advocate Ms. Urmila Desai for the respondent No.2 would submit that the original petitioner is in process to challenge the judgment and order passed in Second Appeal No.22 of 2016.
5. What appears from the record that HMP No.17 of 2012 was filed by the respondent No.2 herein seeking relief of restitution of conjugal right. The learned Court below, after hearing both the sides, passed final order in favour of the respondent No.2 herein qua relief of conjugal right. It is also ordered that the present petitioner shall be liable to pay Rs.3000/- per month towards the maintenance to the respondent No.2 herein till she has been taken back for enjoyment of the conjugal right. Said judgment was challenged by the present petitioner before the learned Principal District Judge, Palanpur in RCA No.22 of 2016. However, by judgment and order dated 27.2.2020, said RCA was dismissed.
6. Being aggrieved by the aforestated judgment dated 27.2.2020, the petitioner preferred Second Appeal No.195 of 2021 before this Court and this Court has allowed the appeal on the ground that the learned first appellate Court has not framed the issues under Order 41 Rule 31 and 33 of the CPC and therefore, quashed and set aside the judgment and order passed in RCA No.22 of 2016 dated 27.2.2020 and remanded the matter Page 2 of 3 Downloaded on : Sat Sep 16 17:04:00 IST 2023 NEUTRAL CITATION C/SCA/3310/2023 ORDER DATED: 13/09/2023 undefined back for fresh hearing.
7. After the RCA is remanded back, it was again heard and it was allowed in favour of the petitioner by setting aside the judgment and decree passed in HMP No.17 of 2012. In view of above, the judgment and decree passed in HMP No.17 of 2012, which is sought to be executed by way of aforesaid execution proceedings, is now no more surviving at least at this juncture. Thus, present petition requires consideration.
8. For the foregoing reasons, this petition succeeds and relief made in terms of para 8(B) is granted. The Regular Execution Nos.10/2017, 18/2017, 61/2017, 807/2018, 27/2020 are hereby dismissed. Notice discharged. Interim relief, if any, stands vacated forthwith. Direct service is permitted.
9. In view of disposal of main petition, connected CA also stands disposed of.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 3 of 3 Downloaded on : Sat Sep 16 17:04:00 IST 2023